the Gadsden treaty, the reservation was untenable and void by this court (Faxon statutory and subject to repeal. Lockhart v. United States, 171 U. S. 244, 43 L. ed. v. Johnson, 181 U. S. 516, 45 L. ed. 979, 21 151, 18 Sup. Ct. Rep. 849), and the greater Sup. Ct. Rep. 665. And there are grounds part of the San José de Sonoita claim was for a contention that the act of 1860, mak- rejected in Ely v. United States, 171 U. S. ing a grant to the Baca heirs, effected a 220, 43 L. ed. 142, 18 Sup. Ct. Rep. 840. repeal pro tanto of the reservation of the And we may say that before the Contzen act of 1854. But there are answers more survey was made § 8 of the act of 1854 directly under § 8 of that act. The mere had been repealed. Lockhart v. Johnson, fact of a claimed Mexican grant did not supra. reserve the lands covered by it. Ibid. It was only after their presentation to the surveyor general of New Mexico for his report thereon that the lands were reserved "until the final action of Congress." There was no reservation except by this statute, and it related only to lands covered by a claim presented to the surveyor general. There is no language in the treaties which implies a reservation. Lockhart v. Johnson, at p. 523. The Tumacacori and Calabazas grant was not presented to the surveyor general until June 9, 1864, and his report was not laid before Congress until May 24, 1880. A petition for confirmation of the San José de Sonoita grant was not presented to the surveyor general until December, 1879. It will be seen, therefore, that there was no disclosure of these claims until after the selection of the Baca grant and its location by the Land Department, the consummation of which was accomplished by the approval of the location April 9, 1864. Besides, the Tumacacori and Calabazas claim was held The contention that the lands covered by these claims were reserved by the act of 1854 being untenable, it results that the only conflict with the Baca float as located April 9, 1864, which requires consideration and decision, is the one arising from that part of the San José de Sonoita claim which has been confirmed as against the United States. And in any event the lands in that conflict are not public lands or subject to disposal by the Land Department. They belong either to the owners of the Baca float or to the owners of the confirmed portion of the San José de Sonoita grant. But which is the superior claim we cannot now consider or decide because the Sonoita claimants are not parties to this cause, and because the question will more properly arise in the local courts, and not in a proceeding in the District of Columbia against the Secretary of the Interior. With this explanation of our former opinion, leave to file the petition for rehearing is denied. (235 U. S. 83) LOUIS DEJONGE & COMPANY, Appt., | a single notice of copyright. The circuit BREUKER & KESSLER COMPANY. COPYRIGHTS ( 29*)-NOTICE ON MULTIPLE A single copyright notice on a sheet of paper containing a dozen copies of a copyrighted painting that so join and continue one another, side by side and above and below, as to form a harmonious whole, is not the notice which, under the act of June 18, 1874 (18 Stat. at L. 78, chap. 301, U. S. Comp. Stat. 1901, p. 3411), every copyrighted work must bear. [Ed. Note. For other cases, see Copyrights, Cent. Dig. §§ 29, 30; Dec. Dig. § 29.*] [No. 18.] Argued October 27, 28, 1914. November 9, 1914. court, assuming that infringement was established, was of opinion that the work was a painting, capable of copyright, and also a design, patentable as such, but held that, as the appellant had elected to copyright, the notice must be repeated on each of the twelve squares, although they did not present themselves as separate squares on the continuous strip. 182 Fed. 150. The circuit court of appeals, reserving its opinion as to whether the sphere of copyright and patent for design overlapped, agreed with the circuit court that, if this was a painting, every reproduction of it must bear the statutory notice, and affirmed the dismissal of the bill. 111 C. C. A. 567, 191 Fed. 35. It seems to us that the case is disposed of by the statement. The thing protected Decided and the only thing was the painting, the whole of which was reproduced in a single square. Every reproduction of a copyright APPEAL from the United States Circuit Court of Appeals for the Third Circuit to review a decree which affirmed a decree of the Circuit Court for the Eastern District of Pennsylvania, dismissing a bill to restrain an alleged infringement of a copy right. Affirmed. ed work must bear the statutory notice. American Tobacco Co. v. Werckmeister, 207 U. S. 284, 294, 52 L. ed. 208, 215, 28 Sup. Ct. Rep. 72, 12 Ann. Cas. 595. It is suggested that it is overtechnical to require a in a single sheet that makes a harmonious repetition of the notice upon every square whole. This argument tacitly assumes that we can look to such larger unity as the sheet possesses. But that unity is only the unity of a design that is not patented. Thompson, and Charles E. Wilson for ap- extensive privileges by being repeated severThe protected object does not gain more pellant. See same case below 111 C. C. A. 567, 191 Fed. 35. The facts are stated in the opinion. Mr. Frank S. Busser for appellee. F. al times upon one sheet of paper, as anyone would recognize if it were the Gioconda. The appellant is claiming the same rights Mr. Justice Holmes delivered the opin- as if this work were one of the masterpieces ion of the court: of the world, and he must take them with the same limitations that would apply to a portrait, a Holy Family, or a scene of war. Decree affirmed. (235 U. S. 37) MISSOURI, KANSAS, & TEXAS RAILWAY COMPANY, Appt., V. UNITED STATES. This is a bill to restrain an alleged infringement of a copyright under the law as it was before the act of March 4, 1909; viz., Rev. Stat. §§ 4952, 4970, U. S. Comp. Stat. 1901, pp. 3406, 3416; act of June 18, 1874, chap. 301, 18 Stat. at L. 78, U. S. Comp. Stat. 1901, p. 3411. The work alleged to be infringed was described as a painting representing sprigs of holly, mistletoe, and spruce, arranged in the form of an open cluster having substantially the outline of a square. It was exhibited in court, was a water color painting in fact, and no doubt might have been framed and used for the RAILWAY LAND same purposes of pleasure as other more GRANTS CONDITIONS-INDIAN LANDS. considerable works of art. But it was so The grant of alternate sections of land designed that it could be reproduced in through the Indian territory, made in aid repetitions that fitted and continued one of railway construction by the act of July another side by side and above and below, 25, 1866 (14 Stat. at L. 236, chap. 241), and was reproduced in that way with twelve § 9, "whenever the Indian title shall be extinguished provided that said repetitions upon strips of paper having lands become a part of the public lands of much the look of wall paper, and intended the United States," never attached to lands to be used in covering or wrapping boxes which, under subsequent congressional legis during the holiday season. Each strip borelation, have been distributed in severalty *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes PUBLIC LANDS (§ 76*) to the members of the Five Civilized Indian Tribes, or have been sold for their benefit. [Ed. Note. For other cases, see Public Lands, Cent. Dig. 241; Dec. Dig. § 76.*] PPEAL from the Court of Claims to review a decree which dismissed upon demurrer a claim based upon a congressional railway land grant. Affirmed. | "with grants of land according to the provisions of this act." The right of way was granted in accordance with treaties with the Indians, and is not in question here. The appellant finished its road first, built the southern extension, and acquired the Decided rights to land under the act of 1866, and the question is what rights it has, in the event that has happened, under § 9. That section enacted "that the same grants of land through said Indian territory are hereby made as provided in the first section of this act, whenever the Indian title shall be extinguished by treaty or otherwise, not to exceed the ratio per mile granted in the first section of this act; Provided, That said lands become a part of the public lands of the United States." This part of the Indian territory was occupied by the five civilized tribes, and what has happened is that, under acts of Congress, the land concerned has been distributed in severalty See same case below, 47 Ct. Cl. 59. The facts are stated in the opinion. Messrs. H. S. Priest, Joseph M. Bryson, A. B. Browne, Alexander Britton, C. L. Jackson, and W. W. Brown for appellant. Assistant Attorney General Thompson and John W. Davis for appellee. •Mr. Justice Holmes delivered the opin- to the members of those tribes, or sold for ion of the court: their benefit. This claim, as construed by the claimant and appellant, is based upon covenants supposed to be imported by an act of Congress of July 25, 1866, chap. 241, § 9. 14 Stat. at L. 236. Upon demurrer it was dismissed by the court of claims. 47 Ct. Cl. 59. The largeness of the demand tends to induce a correspondingly voluminous statement, but the issue really is narrow and the material facts are few. The United States had made land grants to the great roads running east and west, but had not provided for a connection between those roads and the Gulf, through Kansas and the Indian territory to the south. To that end, the act of July 25, 1866, after granting to Kansas, for the use of a road to be built through eastern Kansas from the eastern terminus of the Union Pacific between Kansas and Missouri, ten alternate sections per mile on each side of the road, § 1, authorized the company mentioned to extend its road from the southern boundary of Kansas south, through the Indian territory to Red river, at or near Preston, in Texas, so as to connect with a road then being constructed from Galveston to that point. § 8. The appellant also had been authorized by charter to build a road running southerly from a point on the Union Pacific to where the southern boundary of Kansas crosses the Neosho river, and had acquired a land grant; and the act of July 25, 1866, went on to provide that if the appellant, under its former name of Union Pacific Railway, Southern Branch, first completed its road to the point of crossing the southern boundary of Kansas, it should be authorized to construct its line to the point near Preston, * Taken literally, the grant or covenant of the United States was subject to two conditions precedent. "Whenever the Indian title shall be extinguished" means when and not until that occurs; and contemplates it as something that may or may not come to pass. That proviso attaches the further condition that if the Indian title shall be extinguished, it must be extinguished in such a way that the lands become a part of the public domain. It cannot be said that "whenever" imports that sooner or later the Indian title will and shall be disposed of. The Indians had to be considered, and it could not be assumed that they would be removed to another place, as they had been removed before. It cannot be said, either, that, on the face of the clause, the proviso adds nothing, and means only that, on extinction of the Indian title, the rights of the railroad shall attach as if the land were public land. The section, taken by itself and on its face, excludes the claimant's interpretation that the United States made an absolute promise or grant, and it excludes it none the less that certain services were to be rendered by the road to the United States as one of the terms of the grant of a right of way which the railroad got. On this literal reading of the statute the conditions have not been fulfilled. The land has remained continuously appropriated to the use of the Indians, or has been sold for their benefit. It never for a moment has become a part of the public domain in the ordinary sense. Newhall v. Sanger, 92 U. S. 761, 763, 23 L. ed. 769, 770; Union P. R. Co. v. Harris, 215 U. S. 386, 388, 54 L. ed. 246, 247, 30 Sup. Ct. Rep. 138. It is argued that the For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 88. ment in case of doubt, and seems to us grant attached the moment that the tribal, quire a reference to the rule of strict contitle ceased, whatever it was. But, still struction against the grantee of the governlooking only at the face of the act, and seeing the intent to respect the Indian rights, we cannot read it as preventing the United States from making the change from tribal to several possessions, or dealing with this land in any way deemed most beneficial for those whose rights were treated as paramount. The proviso that the land must become public land shows that a mere change from tribal title was not enough. Taken literally, the grant only applied in case the Indians were removed or bought off the land. ant, V. (235 U. S. 1) STATE OF TENNESSEE. STATES ( 13*)-BOUNDARIES-ESTABLISH- between the states of North Carolina and The facts existing at the time confirm the STATE OF NORTH CAROLINA, Complainliteral interpretation of the act. Less than a week before the passage of the statute the United States had made a treaty with the Cherokees that contemplated the possible allotment of their share in this land to be held in severalty. Treaty of July 19, 1866, art. 16, 14 Stat at L. 799, 804. On June 14, 1866, it had agreed with the Creeks that their lands should be forever set apart as a home for the nation. 14 Stat. at L. 785. And by a treaty of April 28, 1866, art. 11, it had agreed with the Choctaws and Chickasaws that they might have their lands surveyed and divided up, reciting that it was believed that the holding of the land in severalty would promote the general civilization of said nation. 14 Stat. at L. 769, 774. Whether or not, as the government contends, the title of these tribes to the land in controversy was higher than the original possessory right, the United States, as the appellant must be taken to have known, just before its cove- Argued October 15, 16, 1914. Decided nant with the railroad, had been holding out to the Indians the desirableness and possibility of dividing up their lands into individual holdings; and it would be to accuse the government of bad faith to one party or the other to suggest that it forthwith agreed with the appellant that the moment such a division and allotment took place the appellant thereby should acquire a paramount title and render the allotment vain. See, further, Kansas v. United States, 204 U. S. 331, 341, 342, 51 L. ed. 510, 513, 514, 27 Sup. Ct. Rep. 388. The action of Congress in making the allotment to individuals shows in express terms that it did not suppose that the railroads would, or intend that they should, acquire any new rights. Act of March 1, 1901, chap. 676, 23, 31 Stat. at L. 861, 868; July 1, 1902, chap. 1362, 32 Stat. at L. 641; July 1, 1902, chap. 1375, 32 Stat. at L. 716; April 26, 1906, chap. 1876, § 27, 34 Stat. at L. 137, 148. Our conclusion from the words of the statute and the circumstances seems to us too plain to re [Ed. Note.-For other cases, see States, Cent. Dig. 12; Dec. Dig. § 13.] [No. 4, Original.] November 9, 1914. RIGINAL suit in equity, brought by the State of North Carolina against the State of Tennessee for the judicial establishment of a part of the boundary line between the two states. The true boundary adjudged to follow the Slick Rock creek and Fodderstack ridge and thence to follow the main ridge of the Unaka mountain southwesterly, crossing the Tellico river. The facts are stated in the opinion. Mr. Thomas W. Bickett, Attorney General of North Carolina, and Messrs. F. A. Sondley, Theodore F. Davidson, and C. B. Matthews for complainant. Messrs. Charles T. Cates, Jr., and Mr. Frank M. Thompson, Attorney General of Tennessee, and Messrs. T. E. H. McCroskey and Samuel G. Shields for defendant. Messrs. John Franklin Shields and William A. Stone for the Babcock Lumber & Land Company, as amicus curiæ. Messrs. W. D. Spears and L. N. Spears for Theodore A. Cobb et al. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |